IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

 :

v. : CRIMINAL NO. 05-cr-125-01

 :

KENNETH WILLIAMS : 

MEMORANDUM

Fullam, Sr. J. March 7, 2011

The defendant, Kenneth Williams, was convicted in this

court in June 2007 of various drug offenses. The prosecution

resulted from a joint federal-state effort conducted in 2003 and

2004, involving cooperative efforts between federal and state

law-enforcement authorities.

The defendant was sentenced on June 20, 2007, and the

judgment was affirmed by the Third Circuit Court of Appeals a few

months later. Defendant has now filed an application for relief

pursuant to 28 U.S.C. § 2255, contending that his constitutional

rights were violated.

At the outset, it should be noted that it would be

highly unusual for a district court to grant § 2255 relief from a

conviction in this court which has been upheld by the Third

Circuit Court of Appeals. There is no suggestion that the

defendant and his counsel were not fully aware of all of the

circumstances now relied upon to warrant collateral relief. Be

that as it may, it is very clear that the present application is

utterly lacking in merit.
Defendant contents, principally, that his conviction

constituted a violation of the Double Jeopardy Clause of the

United States Constitution. Defendant also asserts that he is

the victim of vindictive prosecution because, as I understand it,

the prosecutors involved chose to proceed in this federal forum

because more severe sentences were available here than would have

been warranted in the state court. 

But it is not within the province of this court to

override prosecutorial discretion. Choices made by the

prosecutors are within their discretion, and are not subject to

judicial interference.

There are, in theory, two possible bases for

defendant’s claims of double jeopardy. The first is that, at the

first trial of this case, the court declared a mistrial and later

granted a motion to dismiss the indictment, on grounds of

prosecutorial misconduct. I ruled that the prosecutor had

intentionally provoked the mistrial by repeatedly asking certain

questions, objection to which had previously been sustained by

this court. I ruled that a retrial of the defendant would indeed

violate his double jeopardy rights. Unfortunately for the

defendant, however, the government appealed, and the Third

Circuit Court of Appeals reversed this court’s decision, holding

that this court’s finding that the prosecutor had intentionally

caused the mistrial was not adequately supported by the evidence. 

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Obviously, the defendant cannot now successfully maintain that

the retrial constituted double jeopardy.

The other possible basis for defendant’s argument, and

the one which defendant principally relies upon, stems from the

fact that the defendant was initially prosecuted in the state

courts, and that the state charges were withdrawn in favor of the

federal prosecution. Unfortunately for the defendant, however,

it is very clear that jeopardy did not ever attach in the statecourt proceedings. Since he was never brought to trial in that

forum, his later prosecution in this court cannot give rise to a

valid claim of double jeopardy.

The claim of vindictive prosecution is totally lacking

in evidentiary support. There is no showing that defendant’s

prosecution, or the prosecutor’s decision to proceed with the

federal case, were intended to, or did, interfere with or punish

defendant’s exercise of a constitutional right.

For all of the foregoing reasons, the defendant’s

application for collateral relief under 28 U.S.C. § 2255 will be

denied.

An Order follows.

BY THE COURT:

/s/ John P. Fullam 

John P. Fullam, Sr. J.

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